ยถ1. (S) Summary. During a February 12 meeting, the Ambassador raised with Prime Minister Abhisit Vejjajiva the ongoing extradition case concerning Russian international arms trafficker Viktor Bout and serious concerns that Boutโ€ s associates had been able to influence testimony given by [xxxxxxxxxx]. Abhisit told the Ambassador that he would address any โ€ irregularitiesโ€ in the case through โ€ appropriate channels.โ€ The Ambassador also raised USG concerns with the xxxxxxxxx testimony during a February 13 introductory call with Defense Minister Prawit Wongsuwan. Prawit committed to looking into the testimony in order to determine the truth.

ยถ2. (S) Comment. Since Viktor Boutโ€ s arrest in Bangkok almost a year ago, moving towards a successful extradition to the United States has been at the top of our bilateral agenda here. In addition to Embassy efforts over the months, President Bush raised it with then-Prime Minister Samak during his August 2008 visit to Bangkok. Overall, our sense has been that while the extradition proceedings have been painfully slow (and have required constant nurturing by our DOJ and DEA personnel every step of the way), they are moving in the direction we want. Lately, however, there have been disturbing indications that Boutโ€ s xxxxxxxxxx and Russian supporters have been using money and influence in an attempt to block extradition. The most egregious example was the false testimony of xxxxxxxxxx that Bout was in Thailand as part of government-to-government submarine deal. Thus, we felt it was time to once again raise the matter at the top of the government and make clear that, while we understand the judicial process must take its course without political interference, we insist that the process be free of corruption and undue influence. We will continue to do so in the months ahead. We understand AG Holder may soon call the Thai AG to review the case (as previous AG Mukasey did three times in addition to his visit to Bangkok last summer). Combined with our efforts this week, the call will make for an important one-two punch. End Summary and Comment.

ABHISIT PROMISES TO LOOK INTO IRREGULARITIES IN BOUT CASE

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ยถ3. (S) During a February 12 meeting at the Parliament, the Ambassador raised with Prime Minister Abhisit Vejjajiva the ongoing extradition case concerning international arms trafficker Viktor Bout. (Note: Bout faces terrorism-related charges in federal court in New York for conspiring to sell millions of dollars of weapons to the FARC for use in killing Americans. He has remained in custody in Bangkok since his arrest on March 6, 2008. End note.) The Ambassador noted that, while the U.S. and Thailand enjoy a strong extradition relationship, our countries must ensure that the bilateral extradition treaty worked in our most important cases, such as those involving terrorism. In this regard, the Ambassador emphasized to Abhisit that the extradition case against Bout is a high priority for the United States. Citing the United Nationsโ€ sanctions against Bout, the Ambassador also noted that the extradition case is one of global importance. Abhisit told that Ambassador that he believed that his office had limited means to affect ongoing extradition proceedings, stating that the judicial system was designed to afford due process to the parties and expressing an unwillingness to be seen as โ€ overrulingโ€ this process, or โ € helping one side.โ€

ยถ4. (S) Expressing growing concern about the extradition proceedings, the Ambassador then described evidence showing that the extradition proceedings against Bout have become tainted as a result of the efforts by Boutโ€ s associates to bribe Thai officials. In particular, the Ambassador detailed false testimony on Boutโ€ s behalf from xxxxxxxxxx to the effect that Bout came to Thailand to conduct official business with the Thai government relating to a submarine project; recorded statements by a Thai associate of Bout that he had procured xxxxxxxxxx to testify on Boutโ€ s behalf; evidence of bribery schemes gathered throughout the world; and a scheme to arrest and thereby embarrass two U.S. diplomats - i.e., DEA agents assigned to the Bout investigation - on meritless charges of participating in illegal recordings of Bout on the day of his arrest. If the xxxxxxxxxxxx false testimony remained unrebutted, the court could possibly deny extradition based on an erroneous conclusion that RTG had legitimate dealings with Bout, a U.N.-sanctioned arms trafficker.

ยถ5. (S) In light of this evidence, the Ambassador asked the Prime Minster to take steps to ensure that the proceedings in Boutโ€ s extradition case were free from the taint of bribery and corruption. In particular, the Ambassador suggested that testimony from an authoritative witness from the Royal Thai Navy or the Ministry of Defense should be offered to repudiate the xxxxxxxxxx statement and make clear that the RTG supports the extradition request. The Ambassador also reminded the PM of the recent case of Jamshid Ghassemi, in which the Thai authorities denied a U.S. extradition request under apparent pressure from Iran, and stressed the importance of avoiding a similar result here. (Note: Ghassemi is under indictment in San Diego for violations of the Arms Export Control Act and money laundering relating to his conspiracy to acquire accelerometers used in missile navigation. End note.) The Ambassador also stated that Thailandโ€ s failure to ensure an extradition process in Bout that is free from corruption and undue influence would constitute a major setback to the bilateral relations between the U.S. and Thailand, especially in the area of law enforcement.

ยถ6. (S) After listening to the evidence provided by the Ambassador suggesting that bribery had infected the Bout proceedings, Abhisit committed to addressing any โ€ irregularitiesโ€ in the extradition case through the โ€ appropriate channels.โ€ At the conclusion of the meeting, the Prime Minister sought the identity of the individuals involved in the bribery schemes, and the DOJ Attache, who accompanied the Ambassador to the meeting, supplied an aide to the PM with the requested information.

DEFENSE MINISTER COMMITS TO LOOKING INTO TESTIMONY

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ยถ7. (S) During a February 13 introductory call, the Ambassador highlighted to Minister of Defense Prawit Wongsuwan the importance the USG places on the Bout extradition proceedings. The Ambassador noted that the USG understood that extradition cases take time and that the USG respected the Thai judicial system, but we were concerned about efforts by Bout to improperly influence the proceedings. Of particular concern was the false testimony by xxxxxxxxx the Ambassador told Prawit. Thexxxxxxxxxx testimony was not true and, as such, it was very important that the Thai Navy or the Ministry of Defense correct this falsehood with testimony to the court. Doing so would ensure that the proceedings were kept on track and would publicly clarify that the Thai military was not associated with a U.N.-sanctioned arms trafficker. Prawit told the Ambassador that he was unfamiliar with the case but that he would give priority to looking into the issue to determine the truth regarding the testimony ofxxxxxxxxx. The Defense Minister also committed to examining a non-paper with more details on the testimony of xxxxxxxxxxx that the DOJ Attache provided to an aide to Prawit. JOHN

SUBJECT: NEXT STEPS ON THE VIKTOR BOUT EXTRADITION CASE IN THE WAKE OF LOWER COURT DEFEAT

REF: BANGKOK 385 (NOTAL)

Classified By: Ambassador Eric G. John, reasons 1.4 (b) and (d)

ยถ1. (C) Summary and comment. The disappointing August 11 Thai Lower Court ruling against the extradition of Russian arms trafficker Viktor Bout, and its dubious legal reasoning, requires a multi-pronged effort to seek a successful reversal during the appeals process. The lead judgeโ€ s foray into foreign policy, rejecting the terrorism label and in effect embracing the FARCโ€ s activities as purely political in nature, not criminal or acts of terrorism, has implications for Thailand. His confusion of the โ€ dual criminalityโ€ concept with jurisdictional issues similarly raises questions for efforts by Thailand to extradite fugitive former PM Thaksin to face justice. The Embassy is working with Thai authorities to file an appeal of the lower courtโ€ s ruling and to press home the implications of the court ruling were Bout to walk free. In the early afternoon on August 13, we were assured that the notice of intention to appeal has been filed.

ยถ2. (C) At the same time, the Embassy recommends the State Department, Attorney General Holder, and the US Mission to the UN in New York engage the Thai Ambassador in Washington and the Thai PermRep in New York in parallel. In addition, the Department should seriously consider asking Belgium, which issued an arrest warrant for Bout in 2002 for money laundering and conspiracy, Colombia, in the case of the FARC, and African countries which have suffered greatly from Boutโ € s arms trade in the past to weigh in with the RTG. Finally, we recommend consideration of laying down a marker in Moscow about Bout, looking forward to the possibility that Bout may end up back in Russia were the appeal of the Lower Court ruling might not succeed. End Summary and comment.

Thai Lower Court rules against Bout extradition

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ยถ3. (C) On August 11, the judge in the Viktor Bout extradition case ruled against U.S. and Thai government efforts to extradite Bout to the United States. Two key elements of his reasoning were: that the FARC in Colombia, to which Bout was conspiring to send weapons, was a political rather than a terrorist group; and that the โ€ dual criminalityโ€ standard of our extradition treaty with Thailand had not been met since Bout could not be prosecuted in Thailand on the charges which the U.S. wants him to face in the U.S. In our view, the judge was wrong on both counts.

ยถ4. (C) After the verdict, as the Department has seen, the DCM spoke on the record to press outside the court room and expressed disappointment and mystification over the ruling and stated that we would fully support RTG efforts to appeal the decision. We have continued the same themes in subsequent interactions with the press.

Engaging the Thai immediately

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ยถ5. (C) The Ambassador called Foreign Minister Kasit immediately after the verdict on August 11 and expressed deep disappointment, noting that the verdict was not justified on legal grounds and that the judge had clearly been in error on several key points. He reminded Kasit that over the past year and a half since Boutโ€ s arrest in Bangkok, the USG had repeatedly underlined the importance of the case, all the way up to the Secretary of State and POTUS levels. In the short-term, the Ambassador told Kasit, we need the Foreign Ministry to do its part in forwarding the necessary documentation to the Attorney-Generalโ€ s office so that the intent to appeal can be filed in the requisite forty-eight hours. (Note: Although the courtโ€ s ruling and a new extradition law specify that the appeal must be filed within 72 hours, the applicable extradition law sets forth the shorter time frame, which we have followed.) Kasit assured the Ambassador that he had already instructed his legal department to do so. The Ambassador also told Kasit that we expected Bout would remain in detention during the appeals process. The MFAโ€ s Legal and Treaties Department faxed the Attorney Generalโ€ s office late evening August 11 supporting the appeal; at the request of the Office of the Attorney General, the Embassy sent a diplomatic note to the MFA and the OAG on August 13 requesting that the RTG appeal the lower court verdict prior to the forty-eight hour deadline (note: the RTG was closed August 12 for a National Holiday, the Queen โ€ s Birthday.) At approximately 1:25 p.m. on August 13, the MFA and OAG advised the Embassy that the requisite notice of intention to appeal had been filed and received by the court.

Next steps

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ยถ6. (C) The Embassyโ€ s โ€ Bout teamโ€ met August 13 to review next steps that will help us prevail on appeal. Our immediate priority was to ensure that the notice of intent to appeal was filed on time (within 48 hours of the verdict) and that the appeal itself is filed within thirty days of the verdict.

ยถ7. (C) We will make clear to the RTG that we expect Bout to remain incarcerated during the appeals process, as specified under Thai law and the August 11 court ruling. Given that the same judge will rule on any bail motions brought by Bout (we expect Boutโ€ s attorneys to push hard on bail), however, his custody status during the pendency of the appeal is a genuine concern. We also intend to make clear to the Thai government (the Ambassador is seeking to call FM Kasit, in Malaysia August 13-14 on a working visit, and will engage the highest available MFA official in Bangkok) that we expect this deficient ruling to receive a comprehensive and meaningful review by the appellate court. Moreover, the Ambassador plans to tell Kasit and other senior Thai officials that, given that the Thai government arrested Bout and sought his extradition to the U.S., the Thai government should be as alarmed by the judgeโ€ s ruling as we are. Therefore, we would encourage the RTG to issue a public statement expressing disappointment in the judgeโ€ s decision, its intention to win on appeal, and a reiteration of Thailandโ€ s commitment to both the struggle against international terrorism and to its extensive law enforcement relationship with the United States. The Ambassador intends to make similar points to newly appointed NSC Secretary General Tawee and to key figures at the Palace. Without being counter-productively heavy-handed, we will make clear that we see Thai executive branch reaction to the ruling as a test of the relationship.

ยถ8. (C) At the same time, however, we believe it is important to remember that our partners in the Royal Thai Police, the Office of the Attorney General, the Foreign Ministry, and even the Royal Thai Navy, largely did everything we asked them to do on the Bout case, including going the extra mile to facilitate our requests. Our posture and actions thus should make clear that we are disappointed with the judgeโ€ s ruling but not with Thai government cooperation in the Bout case.

ยถ9. (C) That said, coming on the heels of the September 2008 Thai appellate ruling affirming a lower courtโ€ s denial of our request to extradite Iranian Jamshid Ghassemi, who was in Thailand to procure controlled technology in violation of the Arms Export Control Act, the question has to be asked whether we can count on the Thai courts to do the right thing on high-profile extradition cases that will affect Thailandโ€ s relations with third countries (we continue to have a perfect record on routine extraditions from Thailand to the United States). Our reluctant conclusion is that we cannot.

ยถ10. (S) The Department will recall that in February of this year, after significant indications that the Russians were trying to use bribes to influence the outcome of the case, the Ambassador made representations to Prime Minister Abhisit (reftel) that we expected the process to be free of inappropriate influence and Abhisit undertook to do so. The Ambassador also intervened at the same time with Defense Minister Prawit Wongsuwan and the Royal Thai Naval Commander Khamtorn Pumhiran to insist that false testimony by xxxxxxxxx (that Bout had been in Thailand as part of a routine naval procurement) be rebutted. The Thai Navy subsequently issued a letter to that effect. We will remind the Thais of their commitment to a clean process and ask that they assure us again on the front.

What We are Doing here/What We Suggest Washington Do

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ยถ11. (C) Given the above, we are undertaking the following steps here in Bangkok, most of which should also be reflected when the Department calls in Thai Ambassador Don Pramuwinai, a move we fully support: -- The Ambassador will immediately seek a meeting with Foreign Minister Kasit and other appropriate senior Thai officials to make clear that, while we appreciate the cooperation on Bout over the past year and a half, we are disappointed and mystified by the judgeโ€ s ruling, which is flawed on several key points. -- In particular, the judgeโ€ s characterization of the FARC as a legitimate political actor would suggest that insurgent groups in southern Thailand are likewise political in nature, perhaps outside the scope of Thailandโ€ s new counterterrorism laws. The ruling also suggests that anyone seeking to send them arms from a third country could not be extradited to Thailand on political grounds. -- Moreover, the judgeโ€ s misguided analysis of the โ€ dual criminalityโ€ standard suggests that fugitives cannot be extradited from Thailand unless a Thai court actually had jurisdiction over the alleged crime, not whether the alleged conduct is viewed as criminal conduct under the laws of both countries. This decision comes at the same time Thailand is pursuing extradition of fugitive former PM Thaksin Shinawatra for abuse of power/corruption-related charges; the judgeโ€ s ruling would also seem to undermine RTG positions in their Thaksin extradition effort. -- Therefore, we expect that the AGโ€ s office will vigorously pursue the appeal of the ruling and that Bout will remain incarcerated during the pendency of the appeal. -- We seek assurances that the case will be afforded a comprehensive and meaningful appellate review, presumably handled by serious, experienced Thai judges. (Note: Appeals are normally handled by a panel of three judges. End Note.) -- We ask that the Thai government issue a statement making clear its own disappointment with the judgeโ€ s ruling and reiterating its commitment to the fight against international terrorism and to the law enforcement relationship with the U.S. -- We will continue to make our points to the press and we are pulling together a โ € FARC fact sheetโ€ for public distribution that we will send in to Washington for comment and clearance today.

ยถ12. (C) We suggest that Washington strongly consider the following actions: -- In addition to the Department calling in the Thai Ambassador, we recommend that Attorney General Holder also call him in. AG Holder could point out the extensive U.S. commitment of law enforcement resources to Thailand (DEA and other), as well as our judicial training efforts, and that a statement from the RTG as outlined above would be very helpful as the U.S. decides where best to commit its law enforcement resources around the world. A senior DEA official might also wish to sit in to highlight the massive DEA commitment to Thailand. (Note: Our DOJ Attache who has led our legal efforts on Bout here will be in Washington on August 20-21. End Note.) -- Discussion of a POTUS telcon to PM Abhisit has been under way for some time; they have not spoken in the seven months both have been in office. We suggest that the call be accelerated and that it include a serious discussion of our concerns over the implications of the Bout verdict, as outlined above. We believe POTUS involvement on Bout would have significant effect here. -- We suggest Washington engage the Colombian government on the implications of the Bout verdict. We suggest inquiring whether Colombia considers the FARC to be a terrorist organization, whether it would be willing to submit a brief in the appeals process, and also make public statements to that effect. We also suggest exploring whether Colombia would be willing to ask Thailand for Boutโ€ s extradition while he (hopefully) is still in detention during the appeals process. (Note: There is no Colombian Embassy in Bangkok; the Embassy in Kuala Lumpur covers Thailand. We understand the Thais cover Colombia from their Embassy in Lima. End note.) It would be useful if the Government of Colombia also raised its concerns in Moscow. -- We also suggest exploring the possibility of whether governments whose citizens have borne the bloody results of Boutโ€ s activities over the years, such as Sierra Leone, Liberia and Congo, would be willing to publicly express dismay/engage the Thai government on the verdict and whether any affected government would be willing to ask for his extradition. -- While the Bout focus is now on Thailand, this is at heart a U.S.-Russian matter. The Department may wish to make clear to Moscow our concerns on Boutโ€ s activities and seek assurances that they will cease. Also, we should consider asking the Russians to prosecute Bout if, in the end, he walks here in Thailand. At the very least perhaps we could force the Russians to publicly refuse to do so. -- The Thai ruling seems inconsistent with several United Nations determinations on Boutโ€ s nature over the years (see below). We suggest our USUN call in the Thai Permrep and lay out how we view the issues in terms of Thailandโ€ s standing with the United Nations. Better yet would be for the appropriate UN official to call in the Thai Permrep and seek an explanation of how the verdict can be justified in light of Thailandโ€ s support of relevant UN resolutions: - UNSCR 1521 (2003) - Liberia - UNSCR 1343 (March 2001) - Liberia - Report of Experts Panel under 1343 - Final Monitoring Report on Angola Sanctions (2000)

-- Finally, despite the listing by the US and EU of the FARC as a terrorist organization, we understand that the FARC is not listed as such by the UN. A move to have the FARC listed formally by the UN would assist the effort to keep Bout in custody. JOHN